#### The People of the State of New York ex rel. Joseph Kahn, Relator, *v.*William W. Farley, as State Commissioner of Excise of the State of New York, Respondent.

Third Department,

July 1, 1914.

Intoxicating liquors — certiorari to review determination of State Commissioner of Excise in removing clerk—relator reinstated.

Where upon certiorari to review the proceedings of the State Commissioner of Excise in removing a clerk whose duty it was to examine applications for licenses, it appears that the relator after refusing to pass an applica*101tion because the applicant had not complied with the statute, was directed by a deputy to pass said application or ‘ ‘ get out,” that he thereafter left the office and immediately reported the facts to the State Commissioner of Excise, informing him that he awaited his further orders, and that he was thereafter removed upon the ground that he had been absent without leave and also for impertinence to the deputy, the determination of the State Commissioner should be annulled and the relator reinstated.

Certiorari issued out of the Supreme Court and attested on the 17th day of January, 1914, directed to William W. Parley, as State Commissioner of Excise of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in removing relator from his position in the State Excise Department of the State of New York.

*Salisbury & Halter [Samuel H. Salisbury*of counsel], for the relator.

*A. M. Sperry,*for the respondent.

Smith, P. J.:

The relator was a clerk in the excise department in New York city, whose duty was to examine applications for licenses, and if they were correct “ to pass them ” by putting his initials thereupon. Upon the 4th day of September, 1913, one Edward J. Meyer presented an application for a certificate, to be operative from the first day of October of the same year. Upon the twelfth day of October of the previous year the said Meyer had a liquor tax certificate which had been revoked by disorderly conditions existing at the premises upon which the liquor was sold, and the law required that no new certificate should he issued until a year had elapsed from the date of such prior revocation. (See Liquor Tax Law [Consol. Laws, chap. 34; Laws of 1909, chap. 39], § 15, subd. 8, as amd. by Laws of 1912, chap. 378; Id. § 17, as amd. by Laws of 1913, chap. 168.) The relator properly, therefore, refused to “pass” the application. Upon the next day the same application was again presented to him and he was told that one McAvoy, the Special Deputy Commissioner, who had charge of the New York office, had directed that he approve of the same. He took the appli*102cation into the office of the said McAvoy and protested that the certificate was not proper and that he could not properly approve of the same. Upon the testimony of McAvoy himself before the State Commissioner, he was directed to “ pass ” the application notwithstanding, and was told, “You will do what you are told to do while you are here.” The relator swears that he was told by McAvoy to “pass ” the application or to get out. The relator thereupon left the office and immediately reported the facts to the State Commissioner of Excise, and informed him that he awaited his further orders. Four days later he wrote another letter, not having received a response to the first, in wnich he practically repeated what had been first written, and at the end of said letter wrote, “ I have been holding myself in readiness for any orders you may deem it advisable to send me.” Thereafter a charge was made against the relator for being absent from his office without leave. He was convicted by the respondent here both of absence without leave during the period in question, and also for impertinence to the Special Deputy Commissioner of Excise. To review such conviction this proceeding was instituted.

This conviction cannot stand upon either charge. There is no doubt that some one in that office should have been removed, but it was not this relator. He has been a clerk in the office for seventeen years; is an honorably discharged soldier, and the protection which the law intended to give him cannot be lightly set aside. (See Civil Service Law [Consol. Laws, chap. 1; Laws of 1909, chap. 15], § 22, as amd. by Laws of 1910, chap. 264.) His act in refusing to “pass” the application was strictly within the law, and the direction of the Special Deputy Commissioner that he should pass it was in clear violation of the Special Deputy’s official duties. The Special Deputy Commissioner swears that all the relator did was to protest against passing the paper. It is difficult to see how for this protest alone he could be charged with disrespectful, behavior towards a superior. Nor is any such specification included in the charges upon which he was tried. As to his absenting himself from the office without leave, it cannot matter whether the relator’s version of the incident be true or that of the Special *103Deputy Commissioner. The relator swears that he was told to pass that paper; an illegal act, or get out. The Special Deputy Commissioner swears that he told him, “You will do what you are told to do while you are here.” The clear inference from this direction is that he must pass that paper or leave. He properly refused to pass the paper and did leave, and reported the facts at once to the State Commissioner of Excise, and wrote that he awaited his orders. It is difficult to see what else he could have done, and for such acts he is not liable to removal.

The determination of the State Comrhissioner of Excise, therefore, is annulled and the relator reinstated as of the date when he was discharged.

All concurred.

Determination annulled, with costs, and relator reinstated as of the date when he was discharged.